People v. Whisenand
| Citation | 44 Cal.Rptr.2d 501,37 Cal.App.4th 1383 |
| Decision Date | 03 August 1995 |
| Docket Number | No. E013454,E013454 |
| Parties | , 95 Cal. Daily Op. Serv. 6764, 95 Daily Journal D.A.R. 11,535 PEOPLE of the State of California, Plaintiff and Respondent, v. Rita Inese WHISENAND, Defendant and Appellant. |
| Court | California Court of Appeals |
Having pled guilty to one count of embezzlement (Pen.Code, § 503), defendant appeals to challenge a victim restitution order made after a lengthy restitution hearing. Specifically, she contends that the trial court erred (1) in awarding interest on the actual losses to the victim; (2) expressly finding that she had the ability to pay for the services of court-appointed counsel; (3) impliedly finding that she had the ability to pay the restitution award; and (4) in ordering her to pay costs of court-appointed counsel, costs of the probation report, and costs of probation supervision.
Defendant was an employee of a hardware store in Murrieta. The store also had an accompanying gas station business. After the owner noticed irregularities, he called the sheriff's department. Defendant admitted to a deputy that she had taken $500 from the cash register between March and May 1992. 2 She also admitted inflating her working hours on her time sheets.
To avoid prosecution, defendant entered into an agreement with the store owner in which she agreed to repay $2,500 which she admitted taking from the hardware store. At that time, she denied taking any funds from the gas station.
Subsequently, the store owner discovered substantial losses from the gas station operation. According to the owner, these losses totalled $19,021.32 for the period from January through May 1992. Charges were filed and defendant admitted the embezzlement. The store owner offered another settlement agreement for $25,000, consisting of $19,000 plus $2,500 plus interest. Defendant refused the offer.
At sentencing the trial court placed defendant on probation for three years with weekend custody for 100 days. It also ordered that defendant pay costs of the presentence report and probation supervision under Penal Code section 1203, in an amount not to exceed $2,300. A restitution fine of $2,000 was stayed pending satisfactory completion of probation. The trial court also ordered victim restitution in an amount to be determined.
The probation department set victim restitution at $19,221.32 and defendant requested a hearing on the restitution amount. A three-day restitution hearing ensued.
The store owner testified that he calculated losses in his hardware business at $3,600. In June 1992, he agreed to accept $2,500 from defendant in installment payments to repay the loss. In August 1992, he became aware of losses in the gas station business of approximately $20,000. An accountant testified to losses of $21,093.22, and documentary evidence was introduced to support that figure.
Defendant testified that she stole about $7,000 from the gas station portion of the business. She explained the difference between the $7,000 and the claimed $20,000 by suggesting that other employees were also stealing from the business. She also stated that the victim asked for $25,000 in order to receive $5,000 in interest on the stolen money. 3
The trial court conducted a thorough review of the documentary evidence and found a total of embezzled money from the gas station business of $18,909. It rejected the contention that other people were also embezzling and assessed defendant with the full amount plus interest of $2,756 for a total of $21,665. 4 The court also found that defendant was able to pay for court-appointed counsel and ordered payment in the sum of $800. 5
Defendant first contends that the trial court's award of interest in the sum of $2,756 was improper. She argues that the statutory authority for victim restitution, former Penal Code section 1203.04, does not authorize an interest award. 6 Defendant thus concludes that "pre-judgment interest on a victim's business loss due to the criminal activity of a defendant is not authorized as a compensable item of victim restitution." 7
In interpreting a penal statute, we first look to the plain meaning of the words used by the Legislature. If we find ambiguity, the legislative intent helps to resolve it. In either case, we interpret the statute in the context of other statutes on the same subject in order to interpret the statutory scheme as a whole. (People v. Broussard (1993) 5 Cal.4th 1067, 1071, 22 Cal.Rptr.2d 278, 856 P.2d 1134; People v. King (1993) 5 Cal.4th 59, 69, 19 Cal.Rptr.2d 233, 851 P.2d 27; see, generally, 3 Sutherland, Statutes and Statutory Construction (5th ed. 1992) §§ 59.03-59.08, pp. 102-145.)
The statute, former Penal Code section 1203.04, does not specifically refer to an award of interest on embezzled funds. Defendant therefore argues that the phrase "replacement cost of like property" is, for embezzled money, a sum equal to the amount taken, without provision for interest. Respondent notes, however, that the statute does refer to repayment of lost profits caused by the actions of defendant. Arguably, the money embezzled could have been invested to produce profits that were lost because of the embezzlement. Interest would thus be a measure of the lost profits.
We thus find ambiguity in the statute. The ambiguity is resolved by consideration of the overall statutory scheme for restitution.
In June 1982, the voters approved Proposition 8, which added article I, section 28 to the state constitution. Section 28, subdivision (b) states, in part: "It is the unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." The section also requires the Legislature to adopt provisions to implement the section.
"Because the constitution speaks of 'comprehensive provisions and laws,' 'restitution ... for financial losses,' and '[r]estitution ... from the convicted persons in every case,' the mandate is clearly to interpret implementing statutes broadly and liberally to the end that the 'unequivocal intention of the People of the State of California that all persons who suffer losses as a result of criminal activity shall have the right to restitution,' may be served." (People v. Beck (1993) 17 Cal.App.4th 209, 219, 21 Cal.Rptr.2d 250.)
The Legislature then enacted a number of statutes dealing with restitution. (3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) § 1325, pp. 1546-1547.) These sections were intended to implement the constitutional mandate and should be interpreted in the light of that mandate. (People v. Broussard, supra, 5 Cal.4th 1067, 1072, 22 Cal.Rptr.2d 278, 856 P.2d 1134.)
Penal Code section 1203.04 requires restitution when a person is granted probation. Section 1203.1 generally requires victim restitution as a term and condition of probation. It provides that: "The court may impose and require any or all of the above-mentioned terms of imprisonment, fine, and conditions, and other reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer...." 8
Restitution thus serves the twin functions of rehabilitation of the offender and compensation to the victim. (People v. Cookson (1991) 54 Cal.3d 1091, 1097, 2 Cal.Rptr.2d 176, 820 P.2d 278; People v. Baumann (1985) 176 Cal.App.3d 67, 75, 222 Cal.Rptr. 32.) The restitution stated in Penal Code section 1203.1 has been interpreted to mean " 'reimbursement to the victims of crime for actual loss flowing from the charged offense or from related misconduct.' " (Baumann, supra, at p. 76, 222 Cal.Rptr. 32.)
Based on the foregoing, it is clear that the order here should be upheld. (People v. Baumann, supra, 176 Cal.App.3d 67, 83, 222 Cal.Rptr. 32.)
The purpose of sections 1203.1 and 1203.04 is to require restitution orders to compensate the victim for his or her actual losses. We agree with respondent that, in the typical embezzlement case, these actual losses may include compensation for the loss of use of embezzled funds by an award of interest from the time of the embezzlement to the restitution hearing. We therefore find that such loss of use is an actual loss which is included within the statutory term "profits lost." (Pen.Code, § 1203.04.) The statute therefore authorizes the award made here, and the award is properly designed to make the victim whole.
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